Getty Images | Yuichiro Chino
The broadband industry has lost another attempt to block California’s net neutrality law.
After ISP lobby groups’ request for a preliminary injunction was rejected last year in the US District Court for the Eastern District of California, they appealed to the US Court of Appeals for the Ninth Circuit. A panel of three judges unanimously upheld the ruling against the broadband industry in January, after which industry groups are petitioning to rehearse all judges on the appeals court (a so-called “and bank” to belong).
The answer came back Wednesday: No appeals court judge thought the broadband industry’s petition for a rehearsal was even worth voting on.
The full court has been informed of the request to rehearse and bank and no judge has asked for a vote on whether or not to repeat the case and bank† The petition to rehearse and bank denied,” the order said.
So California can continue to enforce its net neutrality law while the case continues.
“Remarkable” that zero judges asked for votes
“It’s remarkable that no judge on the nation’s largest appeals court has even called for a vote on the industry’s rehearsal request,” said Andrew Jay Schwartzman, senior adviser to the Benton Institute for Broadband & Society. in a statement in response to the denial. The court has 29 judges and all 29 are currently occupied.
Schwartzman also said the denial is “hardly a surprise. The unanimous opinion of the Ninth Circuit panel, upholding the lower court’s decision to allow the new law to take effect, followed well-established principles. The finding that the federal law not preventing California from adopting its own network neutrality rules is rock solid.”
FCC Chair Jessica Rosenworcel, who voted in favor of federal net neutrality rules in 2015 and opposed their repeal in 2017, applauded yesterday’s court ruling.
“This is big. Because when the FCC rolled back its open internet policy, states stepped in. I support net neutrality and we need to make it the law of the land again,” Rosenworcel wrote on Twitter† Rosenworcel is likely to reinvigorate Title II common-carrier regulation of Internet service providers and net neutrality rules, but it hasn’t succeeded yet because the FCC is stuck in a 2-2 standoff between Democrats and Republicans.
Harold Feld, senior vice president of consumer organization Public Knowledge, also found the “no judge asked for a vote” rule to be significant. “We can expect ISPs to appeal to the Supreme Court because hey, why not,” feld wrote:while adding that he thinks the Supreme Court is unlikely to reverse the decision or even hear the case.
The law prohibits blocking, restriction, paid priority
The California lawsuit was filed by ACA Connects (formerly the American Cable Association), CTIA-The Wireless Association, NCTA-The Internet & Television Association, and USTelecom.
California’s net neutrality law is similar to the federal rules repealed under former FCC chairman Ajit Pai. California prohibits ISPs from blocking or restricting legal traffic. It also prohibits fees from websites or online services to deliver or prioritize their traffic to consumers, prohibits paid data cap waivers (so-called “zero-rating”), and says ISPs should not attempt to circumvent net neutrality protections. by slowing down traffic at network interconnection points.
In response to the law, AT&T ended its “sponsored data” program, in which it charged online services for data cap waivers. AT&T said it was terminating the program nationwide because “the internet doesn’t recognize state lines.”
Washington state also enforces a net neutrality law. While the Pai FCC tried to circumvent all such net neutrality laws, an appeals court ruled it could not.
Judge said ISPs have little chance of success
In his February 2021 oral ruling against a preliminary injunction, District Judge John Mendez said, “I do not think the plaintiffs have demonstrated a chance of success on the merits at this stage of the trial.”
ISPs “claimed that the Communications Act gave the FCC exclusive powers to regulate interstate communications, leaving states alone to regulate purely intrastate communications,” Mendez said. “However, the court finds that the provisions of the law on which the plaintiffs rely do not support the arguments advanced.”
While broadband industry groups could still win in the process, the wording of Mendez’s refusal of the interim ban suggested they face an uphill battle. If ISPs lose in the U.S. District Court, they must appeal again to the Ninth Circuit Court of Appeals. In the meantime, California’s net neutrality law remains in effect, even though there are no comparable rules at the federal level.
